S (A Child : Hague Convention 1980 : Return To Third State)

Where an order sought under the Hague Child Abduction Convention 1980 would send a child to a third state rather than restore the pre-abduction position, the court must not make an unassessed welfare-based relocation decision. The court did not decide whether a third-state order may ever be made.

Where an Article 13(b) risk has been established, protective measures must be assessed concretely. The more the decision depends on them, the closer the scrutiny of their efficacy must be. This includes their enforceability and the destination state’s jurisdiction. Undertakings unsupported by suitable evidence cannot neutralise a grave risk.

The father applied under the Hague Child Abduction Convention 1980 after the mother retained their child in England. The child had been habitually resident with the parties in Germany, but the father ultimately sought an order requiring the child to go to Hungary.

Cobb J found that, without adequate safeguards, the mother had established the Article 13(b) grave-risk exception. He accepted the father’s undertakings and ordered the child’s return to Hungary: [2019] EWHC 56 (Fam).

The mother appealed. The central issues were whether the third-state order was appropriate within Convention proceedings and whether the undertakings were sufficiently robust and effective to ameliorate the established risk.

1. The appeal was allowed. The order requiring the child to go to Hungary was set aside and the father’s application under the Hague Child Abduction Convention 1980 was dismissed.
2. The court did not determine the newly raised jurisdictional question of whether the Convention ever permits a return order to a third state. On the facts, however, Hungary was neither the child’s pre-removal habitual residence nor a state to which the custodial parent had moved. The order was therefore, in substance, a welfare-based relocation decision. It could not stand when no welfare assessment had been undertaken.
3. Where Article 13(b) risk has been established, protective measures have a broad scope and are not confined to the applicant’s undertakings. Measures relied on to ameliorate such a risk require careful scrutiny. The greater the weight placed on their protective effect, the greater the scrutiny required of their efficacy, including enforceability in the relevant state and the jurisdiction of its courts. The court applied the caution concerning unenforceable undertakings identified in In re E (Children) (Abduction: Custody Appeal) [2012] 1 AC 144.
4. Cobb J had not explained why the undertakings were effective in Hungary. The evidence did not establish the Hungarian court’s prospective jurisdiction or financial powers. Translated documents also showed that no guardianship procedure had then been initiated. Further, maintenance obligations appeared excluded from the jurisdictional scope of Article 11 of the Hague Child Protection Convention 1996. The unsupported conclusion that the undertakings neutralised the grave risk could not therefore stand.
5. There was no appropriate alternative order under the 1980 Convention and no proper purpose in remitting the application. Any application under the inherent jurisdiction could be made separately.

• Court of Appeal (Civil Division): allowed the mother’s appeal, set aside the order for the child’s return to Hungary, and dismissed the Convention application: [2019] EWCA Civ 352.
• High Court of Justice, Family Division (Cobb J): found that Article 13(b) would apply absent safeguards, accepted the father’s undertakings, and ordered the child’s return to Hungary: [2019] EWHC 56 (Fam).